65 Ky.

Volume 65 — Kentucky Reports

124 opinions

65 Ky. 1Dickerson v. Commonwealth (1867)
An indictment charging an assault -with intent to rob is substantially good, • although it alleges no act or fact indicating any design to rob the person assaulted, as the charge as made authorized conviction for the simple assault alone.
65 Ky. 3Branham v. Commonwealth (1867)
1. The committing magistrate, or the county judge, may admit a defendant to bail at any time before the first term of the circuit court; but, after the commencement of the first term of the circuit court, the committing magistrate or county judge has no right to admit such defendant to bail. He may be admitted to bail, after the first term of the court, by the circuit judge, or, in his absence, by the circuit court clerk. (Criminal Code, section 61, and amendment of February 5, 1866.) 2. A bail-bond executed before an officer not authorized by law to take it is not obligatory on the bail.
65 Ky. 5Bowlin v. Commonwealth (1867)
1. Each State, so far as not prohibited by her own constitution or that of the United States, has the unquestionable right to regulate her own domestic concerns and prescribe remedies, including rules of evidence, in her own courts. 2. Congress had no constitutional authority to repeal or essentially modify the law of Kentucky on the subject of negro testimony. 3. A negro is incompetent to testify against a white man under the laws and in the courts of Kentucky.
65 Ky. 33Holt v. Commonwealth (1867)
1. To constitute an offense punishable under the statute, the billiard-table, if kept in the house of the defendant, must have been kept or used for hire or profit, directly or indirectly, and the indictment should so allege. 2. As it is not charged in the indictment that the billiard-table was kept or used by the defendant for hire or profit, either directly or indirectly, the facts therein stated do not constitute a public offense, and the court erred in overruling the demurrer to the indictment.
65 Ky. 36Holden v. Commonwealth (1867)
The court of appeals has no appellate jurisdiction over a judgment for a fine for less than fifty dollars, rendered by the city court of Louisville in a prosecution for misdemeanor.
65 Ky. 39Burrus v. Roulhac's adm'x (1867)
CASE 6 — PETITION EQUITY APPEAL PROM FULTON CIRCUIT COURT. CITED— 1 Chitty's Pleadings, 23. 7 /. /. M., 188; Saffron's adm’r vs. Kennedy. 1 B. Mon., 61; Williams vs. Collins. 10 B. Mon., 282; Mais vs. Cross, SfC. 18 B. Mon., 655 ; Jones vs. Stockwell. CITED— Rev. Slat., chap. 80, sec. 26. 6 B. Mon., 183 ; Honoré's ex’or vs. Bakewell. 14' B. Mon., 277; Tiernan vs. Thurman. 3 B. Mon., 452; Breedwell vs. King. 3 Bibb, 183 ; Cox vs. Fenwick. 8 B. M., 468; Ripperden vs. Cozine. 4 Littell, 317; Johnson vs. Gwathmey. 5 B. Mon., 562; Hunt vs. Beard’s heirs. 3 B. Mon., 247.
65 Ky. 45Small v. Small (1867)
CASE 7 — APPRENTICESHIP APPEAL PROM TODD COUNTY COURT. CITED— Civil Code, secs. 579 and 581. 3 Monroe, 9. 1 J. J. M., 307; Coffee, SfC., vs. Watt. Littell’s 2 Dig. L. Ky., Master and Apprentice, 677. 6 J. J. M., 592 ; Mendall vs. Ricketts. 6 Dana, 283 ; Freeman vs. Strong. 6 B. Mon., 281; Rachel, of color, vs. Emerson. 2 Marshall, 39 ; Roberts vs. Des Forges. 2 Marshall, 158; Payne vs. Long, Tilford, df-c. 15 B. Mon., 506, 507; Bakers vs. Winfrey. 2 Rev. Stat., 136. Myers’ Supplement, p. 730, sec. 4. CITED— Sec. 4, act of 1866, Myers’ Sup., 734.
65 Ky. 49Montgomery v. Montgomery (1867)
CASE 8 — PETITION EQUITY APPEAL PROM DAVIESS CIRCUIT COURT. CITED— ■ Civil Code, title 5, secs. 97 and 539. Rev. Stat., chap. 86.
65 Ky. 52Cook v. Redman (1867)
CASE 9 — PETITION EQUITY APPEAL PROM CALDWELL CIRCUIT COURT. CITED— 4 Monroe, 238. 2 J. J. M., 502. 5 Dana, 196. LitteWs Select Cases, p. 165. 6 Monroe, 99. 2 Marshall, 218, 219. Hardin, p. 531. 4 B. Monroe, 202. 4 Bibb, 304. 13 B. Mon., 475. Story on Sales, sec. 423, p. 442.
65 Ky. 55Casey v. Lucas (1867)
1. The conveyance, as made and accepted, purported to be the act of the agent, and not necessarily that of his constituents, whose legal title it does not therefore pass to the vendee; yet such conveyance is a part of the contract, and must bind the constituents as much as their bond for a title. 2. The purchaser having, without eviction or disturbance, or even any alleged danger of either, enjoyed the possession and use of the land ever since he bought, cannot be entitled to a rescission without an effort to procure the title, or without showing that a good title cannot be made.
65 Ky. 58Petree v. Bell (1867)
CASE 11 — PETITION ORDINARY APPEAL FROM CHRISTIAN CIRCUIT COURT. CITED— 8 B. M., 303-4. 6 B. M., 101. 4 Bibb, 102 and 466. 5 J. J. Mar., 296, 577. 11 B. M., 43. 1Bibb, 203.' 3 Bibb, 2. 4 Littell, 241-242. 3 Mar., 299. 1 Mar., 58, 536. 2 Mar., 33. Littell’s Select Cases, 193, 358. 2 /. /. Mar., 547. 3 Mon., 351. 2 Bibb, 418; Griffin vs. Davis. 2 Bibb, 422. 5 Littell, 241. Hardin, 37. 7 Mon., 599, 616. 2 Littell, 121. 6 Mon., 205. 3 Dana, 547. 4 Dana, 258, 263. 10 Cal., 529; Cummings vs. Coe. 2 Met., 285; Lewis vs. Quinker. 5 Dana, 271. 18 B. M.-, 237-8. 3 B. M., 579-580; Oldham vs. Scrivener. 11 Cal., 238; Ritter vs. Scammell. 23 Penn., 193; Young vs. Kimball. 6 Maryland, 71; Eschback vs. Pitts. CITED— Civ. Code, secs. 225, 228. Rev. Stat., chap. 91, art. 1, sec. 10. 6 B. M., 488 to 493; Owens vs. Patterson. 7 B. M., 226; Kelly vs. Lusk. 3 üíeí.,'246; Finnell vs. Cox. 5 B. M., 238; Hally vs. Oldhams.
65 Ky. 63Smith's ex'r v. Vertrees (1867)
1. Private sales by trustees pass no title, except where the maker of the deed of trust shall unite in the conveyance. 2. A trustee is liable for the illegal conversion of slaves, and is responsible for their reasonable value at the time of conversion. 3. A testator’s debts and liabilities should be paid before legacies are paid. 4. The maker of a deed of trust is not a competent witness against the trustee in a controversy between his creditors, who ai’e the beneficiaries, and the trustee, about the illegal conversion and misapplication of the trust property and funds, unless he has k full release from all the beneficiaries, and he himself releases the trustee from all liability to him.
65 Ky. 67Curry v. Commonwealth (1867)
CASE 13 — INDICTMENT APPEAL PROM HARRISON CIRCUIT COURT.
65 Ky. 70Lowry v. Fisher (1867)
CASE 14 — PETITION EQUITY APPEAL P.ROM JESSAMINE CIRCUIT COURT. CITED— 3 Johnson’s Ch. Rep., 501; Read vs. Livingston. 9 B. Mon., 514; Trimble vs. Ratcliffe. 1American Leading Cases, p. 34. 1Conn. R., 525; Salmen vs. Bennett. Rev. Stat., sec. 2, chap. 40, p. 546. 1 Met., 351; Binders vs. Williams. 4 J. J. Mar., 3; Castleman vs. Holmes. 1 Met., 25 ; Haskin vs. Parsons. 2 B. M., 303. 1 Met., 252. 4 Met., 247; Havins vs. Fondy. 3 Met., 437; Russell’s ex’r vs. Moore’s heirs. 18 B. Mon., 649-50 ; Emmons vs. Overton. 16 Vesey, 250 ; Daniels vs. Davidson. 14 B. Mon., 457; Bryant vs. Proctor. 7 Mon., 515; Hanson vs. Cowan. 6 J. J. M., 1; Fowler vs. McChord’s adm’rs. CITED— 1 Rev. Stat., 546. 7 Howard, 228-9. 2 Met., 207. 2 Johnson’s Ch. Rep., 454. 4 Johnson’s Ch. Rep., 123. 17 John., 584. 3 Paige’s R., 117. 8 Wall’s R., 384. 3 John. Ch. R., 497. 1 Dana, 533. 4 Dana, 255. 5 J. J. M., 554. 8 B. Mon., 567-8. 12 B. Mon., 445. 2 C«i. R., 125. 2 Tei-g. R., 346. 6 Rand. R., 98. 2 Dana, 296. 2 Dana, 276. Roberts on Frauds, 17, 418. 1 Stojy’s Equity, sec. 498 and references$r
65 Ky. 79McMeekin v. McMeekin (1867)
The attesting witnesses to a will having, by their attestation, authenjicated the document as a good will, and vouched the testator’s capacity, should be entitled to but little credence when they depose to the contrary. Such persons deserve popular rebuke and legislative denunciation. Had such attesting witnesses died, proof of their signatures would have implied an affirmation of a disposing capacity, and their signatures would have perpetrated a fraud.
65 Ky. 81Commonwealth v. Shields (1867)
1. A failure to administer to the officers having charge of the jury the oath, as required by section 242, Criminal Code, will be a good ground for setting aside the verdict, and granting a new trial. But after being once sworn as required, it will not be necessary to administer the oath again at each adjournment or recess of the court. 2. A substantial performance of the officer’s duty requires the jury to be so kept as in fact to be present with each other, whether in the same or adjoining apartments, so situated as to admit of free and unrestricted communication between them; and the officer himself to remain in such convenient situation as to observe and prevent any attempt to tamper with the jury, or any irregularity on their part; but it is not absolutely required that the entire jury shall be kept within the same room, without regard to comfort or practical convenience, or that the officer shall lodge within the same apartment with them. 3. In a prosecution for felony a strict observance should be enforced of the rules, so necessary to an impartial trial, which rules are provided for the purpose of preventing the use of improper influences with the jury, either for or against the accused. And in view of the dangerous consequences of tampering and collusion with juries, and the difficulty of detecting and proving acts so important to the safety of the guilty agents themselves to be concealed, where the proof of the separation of the jury or of exposure to improper influences is had, it is for the Commonwealth to show that no undue influences were used, and if it fails, the verdict must be set aside.
65 Ky. 85Tucker v. Hood (1867)
CASE It — PETITION ORDINARY APPEAL PROM MARION CIRCUIT COURT. CITED— 1 Greenleaf, §ecs. 348 and 349.
65 Ky. 87Ward v. Crutcher (1867)
In an action for damages for fraud in selling an interest in a shoe-store, the' jury returned a verdict, and the court rendered a judgment, against the defendant for eight hundred dollars. While there was no positive and direct proof of fraudulent misrepresentations, circumstances were established from which, whatever may be the preponderating conclusion, the jury, in the exercise of its peculiar function, had a right to infer fraud and deception, by either delusive misrepresentations or suppression, or both. Held — The court below properly refused a new trial.
65 Ky. 90Long v. Burke (1867)
1. A vendor of land, when he executes a conveyance, retains no lien for the purchase money unless he complies with the regulations of the statute, and expressly states in the deed what portion of the purchase money remains unpaid. (Sec. 26, chap. 80, 2 Siant. Rev. Stat., 230; Chapman vs. Stockwell, 18 B. Mon., 653; Critton vs. McDonald, 3 Met., 252.) 2. The statute changed the common law rule and abolished the vendor’s lien unless the portion of the purchase price remaining unpaid was stated in the deed. 3. In a conveyance of land, a covenant to pay all the vendor’s debts existing on a given day does not state the portion of the purchase price unpaid, and consequently creates no lien on the land.
65 Ky. 93Justices of Marshall County Court v. Justices of Calloway County Court (1867)
In 1834, six thousand acres of land west of the Tennessee river were appropriated by the State to Calloway county, for the endowment of seminaries of learning. In 1842, Marshall county was established wholly out of the territory of Calloway, by an act of the Legislature, which provided that Marshall should have one half of the six thousand acres of land aforesaid, and requiring the Calloway county court to transfer the same to the county court of Marshall. Many acts of the Legislature were passed in reference to these lands, and Galloway county had disposed of all the land except two thousand and eighty acres. Held by the court — That the division of the land between the two counties by act of the Legislature was constitutional — that the claim of Marshall county to her proportion of the land was not barred by the statute of limitation, and that Marshall ought to recover at least to the extent of the two thousand and eighty acres now remaining undisposed of.
65 Ky. 101Harris v. Perry (1867)
1. In order to maintain an action against a constable and his sureties for money collected by him on claims put in his hands, a demand and refusal to pay the amount collected by him to the person entitled thereto must be alleged as a substantive averment in plaintiif’s petition. 2. The court of appeals will not reverse a judgment rendered by default against a constable and his sureties because the petition failed to allege properly a demand and refusal to pay, no other error appearing in the record.
65 Ky. 103Smith v. Jones (1867)
CASE 22 — PETITION ORDINARY APPEAL PROM KELSON CIRCUIT COURT. CITED— Story on Bills of Exchange, secs. 311, 367 to 369, 280, 308, 461. Story on Promissory Notes, secs. 487, 489, and notes, 492, 498, and notes. 6 Cowan’s R., 490 ; Murray vs. Judah. 10 Wendell, 304. 13 Wendell, 540. 6 Hill (N. '¥.), 174.' 4 Kent’s Commentaries, p. 549, note *, 4th ed.
65 Ky. 108Judge & Justices of Hickman County Court v. Moore (1867)
CASE 23 — MANDAMUS APPEAL FROM HICKMAN CIRCUIT COURT. CITED— 1 Revised Statutes, sec. 1, chap. 44. Act of Feby. 14, 1864, Myers' Sup., 279. 2 Bibb, 98; Adams vs. Ashby. 2 Dana, 345 ; Hickman vs. Littlepage. CITED— Myers' Sup., 279. . CITED— 2 Dana, 845-6. 2 Bibb, 98. Rev. Stat., chap. 44, and Myers’ Sup., 254 and 279.
65 Ky. 112Bowen v. Sebree (1867)
CASE 24 — PETITION ORDINARY APPEAL FROM FRANKLIN CIRCUIT COURT. CITED— Rev. Stat., sec. 2, chap. 24 (Conveyances). Story’s Equity Jurisprudence, sec. 385. SpencejJs Equitable Jurisprudence, vol. 1 ,p. 550. 2 Devereux’s Equity, 430, 432. 4 Iredell, 236-8 ; Ashcraft vs. Little. 1 Freeman, 215; Hunt and Tucker vs. Booth. 1 Freeman, 218 ; Edmunds vs. Hunt. 7 Sneed and- Marshall, 488-95; Williams vs. Claiborne. 3 Gill and Johnson, 505, 508; Carroll vs. Lee. 4 Rawle, 66, 73 ; Evans and wife vs. Knorr. 1Leading Equity Cases, 412 ; Hune vs. Tenant. CITED— See. 13, Act of 1796. 13 Ben. Monroe, 383 ; Bell <§• Terry vs. Keller. CITED— Civil Code, sec. 126. Rev. Stat., sec. 17, art. 4, chap. 47. 2Rev. Stat., 28, 8, 32, sec. 23, chap. 80. 1 Duvall, 76; Hutchinson vs. James. 2 Metcalfe, 521; Toombs vs. Stone. 3 Metcalfe, 508; Gaines vs. Poor. 3 Metcalfe, 334; 2 Met., 253. 4 Metcalfe, 96 ; Hanly vs. Downing.
65 Ky. 117Bates v. Buchanan (1867)
1. The plaintiff sued for and obtained possession of a mare worth one hundred and twenty-five dollars, on executing to the sheriff a bond securing the return of the mare and the payment of any damages adjudged on his failure in the action. After the delivery of the mare by the sheriff to plaintiff, the defendant filed his answer, avowing title in himself, and denying that plaintiff had any title to the mare, and prayed to be dismissed with a judgment for his costs. On the trial of the issue thus formed, the jury returned a verdict finding that the mare was defendant’s, fixing her value at one hundred and twenty-five dollars, and assessing thirty-five dollars damage for the detention from the time of the delivery .by the sheriff to the time of the trial, and thereupon the court rendered judgment for the return of the mare, for the payment of her assessed value, and also for thirty-five dollars damages. Held — That the answer was sufficient. Section 360, Civil Code, provides that the jury must assess the value, as also the damages for the taking or detention, whenever there will be a judgment for a recovery or for a return of the property; and that there was no error in the judgment. 2. A judgment for a specific thing, in detinue or replevin, entitles the successful party to its value, if it be not restored: that value must be assessed by the jury. 3. It results, from the nature and object of the action of replevin, that the right to damages is incidental to the right to restitution, and must accompany it to the time of adjudging restitution. It is the duty of the jury to find as to damages whenever they find as to value.
65 Ky. 121Cook v. Gray (1867)
1. The allegations of a counter-claim, if not replied to, are lo be tabeen as confessed, and must be allowed if it presents a legal defense. 2. There is a material distinction between a warranty of a chattel on an executed sale, and a warranty that articles to be manufactured and delivered in future shall be of a particular quality. In the former case the purchaser has the right to rely upon the warranty without examination or inspection of the article, and therefore may return the articles or sue for the breach of warranty, or use it as a defense by way of recoupment; whereas, in the latter case, if he should receive the article, he thereby furnishes conclusive evidence to warrantor that the article is of the quality covenanted to be delivered. (O'Bannon, ¿¡e., vs. Rolfe ¿¡Bledsoe, 7 Dana, 327.)
65 Ky. 123Frank v. Keith (1867)
The Central railroad company is not liable for a bundle of jeans which was captured by Confederate troops in June, 1864, at the depot in Cynthiana, without any culpable negligence upon the part of the company or its agents.
65 Ky. 126Webb v. Wright (1867)
CASE 28 — PETITION EQUITY APPEAL PROM MADISON CIRCUIT COURT.
65 Ky. 128Fleming's adm'r v. Ernst (1867)
CASE 29 — PETITION ORDINARY APPEAL FJtOM KENTON CIRCUIT COURT. CITED— Act of March 10, 1854, 2 Slant. Rev. Stat., 510. Act of February 17, 1866, Flyers' Sup., 724. CITED— 2 Slant. Rev. Stat., 510. Act of February 17, 1866, Myers' Sup., 724. Hilliard on Torts, pp. 132, 133.
65 Ky. 130Myall v. Wright (1867)
CASE 30 — PETITION ORDINARY APPEAL FROM MASON CIRCUIT COURT. CITED Civil Code, secs. 180, 221. MSS. Op., January, 1854; Jones vs. Terrant. CITED— 8 Foster (N. H.), 12 ; Stevenson vs. Smith. 15 B. Mon., 323 ; Evans vs. Gregory. _37 Maine, 2 Heath, 130 ; Gumey vs. Tufts.
65 Ky. 132Jackson v. McElroy (1867)
CASE 31 — PETITION EQUITY APPEAL PROM WASHINGTON CISO«V COVKP. CITED— Civil Code, secs. 289, 439, 153, 287, 257, 440, 221, 611, 442, 448. 4 Metcalfe, 168 ; Duncan vs.. WicJclijfe. 3 B. Mon., 126; Garfield vs. Denny, ¿yc, 4 Metcalfe, 243; Allen vs. Brown. 9 Dana, 265; Calk vs. Childs. 1 Metcalfe, 489; Patterson vs. Caldwell. 1 Duvall, 342; Dunn vs. Salter. 1 Duvall, 396; Buckner, ¿yc., vs. Bush. 14 B. Mon., 271; Payne vs. Witherspoon. 2 Metcalfe, 137; Ryan vs. Bean’s adm’r. MSS. Opin., June, 1858; Williams vs. Martin. Jackson vs. Speed and Salter cases, late decisions of this court. CITED— Civil Code, secs. 253, 147, 440. 2 Duvall, 426; Jackson vs. Speed. CITED— Civil Code, secs. 440, 88, 91. 9 Dana, 265 ; Calk vs. Childs. 9 Dana, 82; Hill vs. Lackey. 3 B. Mon., 125; Garland vs. Denny, ¿yc. 1 Metcalfe, 651; Galt vs. Johnson’s adm’r. 2 Duvall, 426; Jackson vs. Speed. 15 B. Mon., 439; Dawson vs. Goodman. 1 Bibb, 293. 3 Bibb, 522. 5 Monroe, 452-3; Parker’s heirs vs. Anderson’s heirs. 18 B. Mon., 237; Gossom vs. Donaldson. 2 Bibb, 518; Coleman vs. Trabue. 4 Dana, 438; Bustard vs. Gates. 7 B. Mon.; Lampton vs. Usher's heirs. 12 B. Mon., 472; Harrison vs. Hard. 2 Bacon's Abridgement, 740. CITED— 18 B. Mon., 237; Gossom vs. Donaldson. 8 B. M., 105; Benningjield vs. Reed. 4 Dana, 438; Bustard vs. Gates. 7 B. Mon., 57; Lampto.n vs. Usher's heirs. 12 B. Mon., 472; Harrison vs. Hord.
65 Ky. 137Stephens v. Brooks (1867)
1. Where there is any evidence conducing to show a right of recovery, the weight of which, it was the province of the jury and not of the court to determine, a peremptory instruction to the jury to find for the defendant is error. 2. If a fugitive criminal, for whose arrest the Governor has offered a reward, is arrested by one, and the reward is received by another, an action is maintainable by the person who made the arrest for the recovery of the reward so received.
65 Ky. 141Watts v. Cook (1867)
In the indemnifying bond to the officer, the undertaking to pay to any claimant thereof the damages he may sustain in consequence of the seizure or sale of the property levied on by the officer, aa required and provided for in section 109 of the Civil Code, embraces all legal or equitable claimants whose.rights might otherwise be jeoparded' by the wrongful seizure or sale of the property under execution; and a right of action is given to all such claimants by section til, Civil Code.
65 Ky. 144Thompson v. Probert (1867)
CASE 34 — PETITION ORDINARY APPEAL PROM MONTGOMERY CIRCUIT COURT. CITED— 8 B. Mon., 282 to 285; Miller vs. Porter. 1 Slant. Rev. Stat.,p. 222. 1 Parsons on Contracts, p. 373, and notes. 4 Metcalfe, 309 ; Stern vs. Freeman. 1 J. J. M., 236; Breckinridge's heirs vs. Ormsby. CITED— 7 J. J. M., 3; Morgan vs. Lewis. 3 Monroe, 254; Roberts vs. Terrill. 1 J. J. M., 549 ; Calvert vs. Simpson. Rev. Stat., title Landlord and Tenant, p. 92,sec. 2.
65 Ky. 147Scott v. Scott's ex'rs (1867)
I direct that my wife shall have as much of the stock, implements, furniture, and personal property, including money on hand at my death, •sts she may think necessary for her comfort, convenience, and maintenance.” The testator also disposed of such of his personalty as might be left at her death. Under the above clause of the will, the widow claimed and held the entire personal estate therein referred to, and purchased a tract of land for which she paid five thousand five hundred dollars out of the estate money, and. conveyed the land absolutely to a son in trust for his wife and children. The executors of the will-brought suit against the widow and son, &c., and claimed that she was only entitled to a reasonable amount for her maintenance, &c., and also that they were entitled to the land purchased by her and conveyed to the son. Held by the court — That the widow was left by the will free and unrestricted to retain and use whatever she desired, even the whole of the estate embraced in the above clause of the will; but that hers Was a life estate, and that, therefore, the conveyance of the land by her to the son, which she purchased with money of the estate, was fraudulent, and should be set aside and be conveyed to the executors, reserving a life estate therein to' the widow.
65 Ky. 153Kendrick v. Fields (1867)
In an action for damages for the wrongful taking and conversion of personal property, the defendant, although summoned, failed to appear and answer. The circuit court rendered a judgment pro con/esso except as to the allegation of value, and continued the case for an inquiry as to the value of the articles taken. The judgment taking the petition for confessed was not only interlocutory, biS was final as to the defendant’s guilt, and as to the articles described as having been taken, and left nothing for litigation except the value of the property.
65 Ky. 155Drain v. Violett (1867)
1. “Children” and “issue,” as used in chapter 30 of the Revised Statutes, title “ Descent and Distribution,” are not necessarily confined to children and issue born in lawful wedlock, but includes all such children and issue as are by law capable of inheriting. 2. A natural son, being recognized by his father, who procured the passage of an act of the Legislature to make him capable of inheriting his estate as though he had been a legitimate son, will inherit his father’s estate, if he. survives him, the same as if he had been born in lawful wedlock.
65 Ky. 158Rawlings' ex'r v. Landes (1867)
CASE 38 — PETITION EQUITY APPEAL PROM CHRISTIAN CIRCUIT COURT. CITED— 1 Jarman on Wills, side page 722 and 522, 535-6, 756-7. 12 B. M., 519-20. 3 Met., 473; Hooker vs. Gentry. 13 B. M., 431; Cox vs. Coleman’s heirs. 3 Littell, 281. 7 B. M., 535. 9 B. M., 95. 5 B. M., 556. Littell’s Sel. Cases, 331. 1 B. M., 152. 10 B. M., 412, 469.. 12 B. M., 42. CITED— 2 Williams’ Executors, side page 799, 1198-9. 3 Met., 473; Hocker vs. Gentry. 12 B. M., 517; Field’s heirs vs. Hallowed. 1 Jarman on Wills, side page 524-5. 2 Jarman on Wills, side page 530. Story’s Equity Jurisprudence, sections 791-2-3, 976, 1060-1, 1212-13-14. 13 B. M., 545; Gedges and wife vs. W. Bap. Theo. Institute. 4 Dana, 603; Clouch’s ex’rs vs. Adams. 3 Dana, 186; Helm vs. Danhy. 8 B. M., 61; Pope’s ex’rs vs. Elliott, Spc. 12 B. M., 482; Samuel vs. Elliott. . 3 J. J. Mar., 265; Cosby vs. Furgerson. 9 B. M., 285-8; Bergen vs. Chenault. CITED— 3 Bibb; Jones vs. Langford.
65 Ky. 163Chandler v. Ferguson (1867)
The purchaser of a mare, even for a valuable consideration, from a wrongdoer, who wrongfully took the mare from her owner, was not vested with a right of property in the mare. The possession of the wrongdoer was wrongful, and he had no title, and could not confer title to his purchaser. 'The subsequent possession of the purchaser was a conversion for which the owner could maintain his action.
65 Ky. 165Engleman v. Nat'l Bank (1867)
On a motion for a continuance, and for time until the next term to prepare and file answer, the defendant’s affidavit failed to disclose facts from which the court could know that any sufficient cause existed, either for continuing the action or extending the time for filing an answer; the motion to do so was properly overruled.
65 Ky. 168Cecil v. Welch (1867)
On a promise to pay “as soon as able," a judgment and execution will be the best test of the defendant’s ability to pay. If they prove his ability, he ought to pay; and if they fail, he cannot be prejudiced by the judgment.
65 Ky. 169Dehoney v. Sandford (1867)
A judgment for the value of a watch and a note, by default, in the court below, will not be reversed by the court of appeals upon the alleged ground that no proof was heard in the court below, when a deposition is copied in the record and the judgment itself recites that the cause was heard; but the court will assume that the necessary proof was heard.
65 Ky. 171Delph v. Delph (1867)
CASE 44 — PETITION EQUITY APPEAL FROM FAYETTE CIRCUIT COURT. OITED— Wigram's Rules. 1 Greenleaf ’s Ev., sec. 287, n. 3.
65 Ky. 176Shepherd v. Thompson (1867)
1. Before a tenant can be subjected to the consequences of a forcible detainer, it is requisite now, under the Code, as it formerly was under the statute, that he should have refused to restore the possession after the expiration of his term; and a mere continuance in possession, without suck refusal or the commission of some act constructively constituting a refusal, is not sufficient to convict a tenant of a forcible detainer. (Sec. 500, Civil Code.) 2. An acquittal on a charge of forcible detainer will not bar a subsequent action for a forcible detainer committed at a subsequent date.
65 Ky. 179Robinson v. Miller (1867)
The holder of a note for $2,500 — then past due — without the knowledge or consent of the sureties to the note, in the latter part of January, 1862, agreed with the principals in the note, that, in consideration that they would give him eight per cent, 'interest from the time the note was due until the 1st of January, 1863, and execute their note for that amount, that he would indulge them until then, and that the principal note should not bear interest. In pursuance of this agreement, they did execute to him their note for the amount of this interest from the time the note was due until January 1, 1863. After the indulgence thus agreed upon had expired, the holder of the note brought his suit against all the parties on the original note. The sureties plead the indulgence in defense as to them. After an elaborate discussion of the whole doctrine of indulgence and forbearance, the court held — That the sureties were released from all liability on the note for $2,500 by the contract and agreement for indulgence without their consent; also, that the note for the amount of eight per cent, was only binding for the amount of six per cent., and that the sureties would have been released as well by a note for six as for eight per cent, interest, given under the same circumstances.
65 Ky. 191Burnam v. Romans (1867)
If the petition sets forth sufficient grounds for an attachment, the requisite affidavit prescribed by section 222 of the Civil Code may be dispensed with, if the petition is sworn to.
65 Ky. 194Donahue v. Murray (1867)
CASE 47 — PETITION ORDINARY APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. CITED— Act of January 13, 1867, Sess. Acts, p. 5. Civil Code, sec. 15. Act of February 9, 1858. 1 Met., 566-7; Tipton vs. Chambers. 12 Ben. Mon., 421; Miller vs. Yocum. 2 .Rev. Stat., sec. 2, 527, and Act Feb. 5, 1866, Myers' Sup., 771. 2 Met., 269; Bakewell vs. Howell. 3 lb., 321-2 ; Revill vs. Pettitt. 3 Peters, 34; Garden vs. Ogden. 4 J. J. M., 242; Mills vs. Couchman. 5 Dana, 596; Williams vs. Wilson. 7 Dana, 168; Bassett vs. Oldham. 3 Met., 77 ; Burbage vs. Squires.
65 Ky. 197Wood v. Wells (1867)
CASE 48 — PETITION ORDINARY APPEAL PROM RUSSELL CIRCUIT COURT. CITED— Civil Code, secs. 153, 737. CITED— Act of 1796, 1 Statute Laws, p. 158. Civil Code, 449, 737, 225. Act of February 28, 1868. CITED— Civil Code, secs. 287, 221, 68, 66. MSS. Op., Dec., 1856; Marrad vs. Dread.
65 Ky. 201Lusk v. Salter (1867)
CASE 49 — PETITION EQUITY APPEAL PROM PAYETTE CIRCUIT COURT.
65 Ky. 202Richardson v. Tipton (1867)
1. The title of personal property by capture is perfect as soon as it is in the firm possession of the captor. ( Wheaton, Sallech, §c.) 2. Horses captured by Kentucky State troops, in the late war, became the property of the State, and were disposed of by her officers, and the United States never had even the shadow of a claim to such horses; and the seizure of such horses by United States horse-inspectors was wholly tortious. 3. A party who sold a horse branded U. S., which was afterwards seized by a United State horse-inspector merely because he was so branded, is no more liable on his implied warranty of title than if any other trespasser had.seized the horse under any other pretended claim.
65 Ky. 206Maupin v. McCormick (1867)
CASE 51 — PETITION EQUITY APPEAL PROM MONTGOMERY CIRCUIT COURT. CITED— 17 Ben. Mon., 488; Hicks vs. Shouse. CITED— 17 B. M., 483. 5 Monroe. CITED— 1 Bibb. 396; Kincaid vs. Higgins. 8 Johnson's R., 189 ; Thompson vs. Ketchum. 1 Com. R., 404; Bean vs. Page. $. G. Johnson’s Rep., 285. 1 Taunton, 347; Hogg vs. Smith et al. 1 Peters’ U. S. R., 455; Bank of Columbia vs. Hagan. Chitty on Contracts, 74. 5 Monroe, 8; Haggin vs. Williamson. 17 B. Mon., 486; Hicks vs. Shouse.
65 Ky. 211Yowell v. Gaines (1867)
In a proceeding in rem during the absence 'of the defendant from the State, from 1862 to 1865, the defendant's land was sold at an enormous sacrifice. At the commissioner’s sale the plaintiff became the purchaser, and after confirmation of the sale, was put in possession of the land by process of the court. On defendant’s appeal the court of appeals reversed the judgment of sale, and thereupon the defendant filed his petition in the circuit court for the purpose of quashing the sale under the provisions of the *lth subdivision of section 579 of the Civil Code. Seld — That the sale ought to be set aside, if the commissioner’s report be opened for objection. (See opinion for the sufficiency of the grounds for opening and setting aside the sale as was ordered in this case.)
65 Ky. 215Willis v. Woodward (1867)
CASE 53 — PETITION EQUITY APPEAL EBOM CAMPBELL CIBCUIT OOUHT. CITED— Civil Code, sec. 445. 11 Howard, 325; VanRansalear vs. Kearney. 4 Peters-, 1; Carver- vs. Jackson. 1 Greenleaf’s Evidence, 23. CITED— 9 B. Mon., 547; Scarborough vs. Watkins and wife. 18 B. Mon., 908; Todd’s heirs vs. Wickliffe. Story’s Equity Jurisprudence, 764 — 5. Clancy on Married Women, 350. 17 Penn. R.; Garrigens vs. Harris. 4 Monroe, 375; Peddicord, fyc., vs. Gibson’s adm’rs. 5 /. J. Marshall, 570; Lyne vs. Bank of Kentucky. 1 Spence’s Equity Jurisprudence, 625. 5 Dana, 184; Cruise vs. Christopher. 13 Vesey,jr., 51; Lady Ormond, vs. Hutchinson. 14 Vesey, 273; Hugenin vs. Baseley.
65 Ky. 221Webb v. Jeffries (1867)
CASE 54 — PETITION ORDINARY APPEAL PROM PAYETTE CIRCUIT COURT. CITED— Code, sec. 887, 891, 904. 18 B. M., 60; Francis vs. Francis. Myers’ Sup., 488.
65 Ky. 224Davis v. Watkins (1867)
Money, although wrongfully obtained, being produced to the court, is a fund in court, and when claimed by more than one party, the court, where the pleadings and evidence will justify it, should permit the jury to find a general verdict, and order the money to be paid over accordingly.
65 Ky. 226Archer v. National Insurance (1867)
CASE 56 — PETITION ORDINARY APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. CITED— 4 Bibb, 69; Boone vs. Shackleford. 6 Mon., 662; Clay vs. Johnson. 4 J. J. M., 154; Rogers vs. McKnight. 10 B. Mon., 42; Case vs. Fishback. 1. Metcalfe, 230; Griswold vs. Taylor.
65 Ky. 228Ashbrook v. Ryon's adm'r (1867)
The delivery of promissory notes given causa mortis passes the beneficial interest therein to the donee. (Turpin vs. Thompson, $c., 2 Met., 420.) But money in bank does not pass by the delivery of the passbook.
65 Ky. 231Lockhart v. Yeiser & Co. (1867)
1. The lapse of fifteen years, without issuing an execution, will bar any further proceedings on the judgment; and if another execution is issued thereon, the court ought to quash it upon motion. 2. The amendment to chapter 63 of the Revised Statutes, approved May 31, 1865 (Myers' Sup., 295), is constitutional.
65 Ky. 232Merriwether v. Sebree (1867)
CASE 59 — PETITION EQUITY APPEAL PROM TODD CIRCUIT COURT. CITED— Civil Code, section 884.
65 Ky. 236Deposit Bank v. Berry's adm'r (1867)
CASE 60 — PETITION EQUITY APPEAL PROM HARRISON CIRCUIT COURT. CITED— Rev. Stat., sec. 34, chap. 37.
65 Ky. 241Epperson v. Blakemore (1867)
CASE 61 — PETITION EQUITY APPEAL FROM CLARK CIRCUIT COURT. CITED— Starkie, 8th Amer. ed’n,page 121. 7 Dana, 251; Railroad Co. vs. Kidd. Civil Code, sec. 669. 2 Metcalfe, 441; Packard vs. Northcraft. CITED— 1 Parsons on Contracts, 5 ed.,p. 54 and note. 10 B. Mon., 349; Violet vs. Powell’s adm’r. Paley on Agency, 326 — 7.
65 Ky. 244Cooper v. Baker (1867)
CASE 62 — MOTION APPEAL PROM CLARK CIRCUIT COURT.
65 Ky. 246Carbon v. Stout (1867)
1. In a controversy about the ownership and identity of a brown mare, the deposition of Turnbull proving that the mare was foaled his, that he sold her to Bicket, and that the latter sold her to one of the parties to the suit, was competent and admissible evidence. The interest of Turnbull, the vendor to Bicket, who was the immediate vendor to the party to the suit, was too contingent and remote to disqualify him on the score of bias, and could only affect his credibility. (1st Greenleaf, section 394.) 2. To disqualify a witness, his interest “must be direct and immediate to the party; for if the witness is liable to a third person who is liable to the party, such circuity of interest is no legal ground of exclusion.” (1 Greenleaf, sec. 394.)
65 Ky. 249Ricketts v. Hall (1867)
Compounding a debt between a creditor and his failing debtor, when no fraud nor unfair concealment by the latter is alleged, is now upheld as being upon a sufficient valid consideration, and especially when the debtor either secures the amount by another name, or transfers obligations on other persons for the amount agreed on.
65 Ky. 251Pepper v. Aiken (1867)
It is only when unfair concealment or fraudulent conduct induces a party to receive a less sum than is actually due him, that courts interpose against the compromise of causes of litigation, not simply because a party, knowing all the facts, agrees to receive a less sum, in full discharge, in order to get that much in possession, and then litigate as to the remainder which he claims.
65 Ky. 254Lee v. Louisville Pilot Benevolent & Relief Ass'n (1867)
There is nothing in the charter or by-laws of the Louisville Pilot Benevolent Relief Association, approved February 22d, 1860, either unconstitutional or inconsistent with public policy or the laws of Kentucky. The presumed object of the tariff of fees, &c., provided for by the bylaws, was uniformity of charges, harmony, efficiency, and fidelity, and not unjust monopoly, or the extortion of exorbitant fees. The members of the association are liable for their proper dues.
65 Ky. 256Gray v. Oyler (1867)
CASE 67 — PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. CITED— 13 B. Mon., 175. 16 B. Mon., 335. 16 B. Mon., 686. 18 B. Mon., 60. 18 B. Mon., 494. 3 Met., 127. 3 Met., 148. 4 Met., 159. 4 Met., 282. 4 Met., 355. 1 Duvall, 30 ; Quisenberry vs. Artis. 1 Duvall, 262; Whitaker vs. Sandefer. 1 Duvall, 59 ; Gregory vs. McFarland. 3 Met., 64. CITED— 2 Peters, 137 ; Van Ness vs. Packard. 7 Barb. S. C. R., 266 ; King vs. Wilcomb. 19 N. Y. Rep., 234 ; Ornbony vs. Jones. Taylor’s Landlord and Tenant, p. 400, ed. 1866. Ib., secs. 544, 545, 546, 547. 46 Barb.; Wintermute vs. Light. 1 Hill., 177 ; Smith vs. Benson. 1 Met. (Mass.), 313; King vs. Wilcomb. 7 Howard’s (Miss.) R., 423 ; Stillman vs. Hamer. 6 Greenleaf, 404; Osgood vs. Howard. 1 Dana, 591; Wickliffe vs. Clay.
65 Ky. 263Cain v. McHarry (1867)
During the pendency of her suit for alimony and divorce a vinculo, against her absconding husband, to the extent of the amount of alimony adjudged to her the plaintiff has the right to make other parties and recover judgments against them for money won by them from her husband by unlawful betting on a horse-race. Although the Wood-lawn Race-course was chartered for the expressed purpose of racing, yet, while it encourages racing, it does not legalize betting. A collusive release obtained pendente lite can be of no avail.
65 Ky. 265Bakewell v. Ogden (1867)
A devise of a lot in Louisville to trustees for the benefit of the testator’s three daughters, with the discretionary right in the trustees to sell the lot, in the course of two years after testator’s death, and invest the proceeds either in good stocks or to loan it upon good security, and pay the dividends or interest to the beneficiaries; and, at the expiration of ten years after the death of the testator, the trustees “shall divide the principal equally and pay the same to my three daughters, taking their receipts in full and final discharge of this trust." Held— That the trustees had no right to sell or dispose of the lot after ten years from the recording of the will. Although the issue was not made in the case, the court intimate that the trustees had no right to sell the lot at any time after two years had elapsed after testator's death.
65 Ky. 271Arbegust v. City of Louisville (1867)
CASE YO — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. CITED— Act of Feby. 18, 1864. Act of Feby. 17, 1865, S. A., 722. Smith’s Statutory and Constitutional Construction, pp. 439 to 879, sec. 757. Constitution of Ky., sec. 37, art. 2, sec. 14, art. 18. Constitution of United States, 5th amendment. 3 Met., 257; Hedger vs. Rennaker. 9 B. Mon., 347; Cheaney vs. Hooser. 15 B. M., 499; City of Covington vs. Southgate. 4 Met., 295; Berry vs. Randall. Session Acts, 1835-6, page 289, sec. 28. 4 GUI John., 6; Canal Co. vs. Railroad Co. Smith's Com.,p. 924, sec. 812. 17 B. Mon., 231; Sharp's ex'r vs. Dunavan. 2 Metcalfe, 557; Mathers vs. Shields. Act of Feby. 17, 1833, Sess. Acts 1832, p. 217. Act of March 24, 1851, new city charter, sec. 15, art. 6. Law Register, Sept., 1867, p. 716. Sedgwick on Con. Law, pages 250, 674. CITED— 15 B. Mon., 491; Southgate vs. Covington. 17 B. Mon., Sharp's ex'r vs. Dunavan. 4 B. Mon., 149; Williamson vs. Commonwealth. 2 Met., 353; Mathers vs. Shields. 9 B. Mon., 330; Cheaney vs. Hooser.
65 Ky. 278Stewart v. Munchandler (1867)
CASE Í1 — PETITION ORDINARY APPEAL PROM JEFFERSON COURT OP COMMON PLEAS. CITED— Act of Feby. 14, 1866, Myers’ Sup., 734. 3 Marshall, 369. 2 Rev. Stat.,p. 360, sec. 6.
65 Ky. 282Stimmel v. Waters (1867)
CASE 13 — PETITION ORDINARY APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. CITED— 8 B. Mon., 101. Bouvier’s Institutes, 77, 78. Sedgwick on Damages, p. 124. Taylor’s Landlord and Tenant, sec. 710. 2 Slant. Rev. Stat., secs. 6-7, art. 1, chap. 56, pp. 91-2. CITED— 2 Stant. Rev. Stat., chap. 93, art. 1, chap. 56, pp. 91-2. 4 Dana, 150; Shoffet vs. Menifee. Civil Code, secs. 369, 111. 16 B. Mon.; Bentley vs. Bustard. Taylor on Landlord and Tenant, secs. 21, 23, 52, 61-5. 6 B. Mon., 389 ; Harris vs. Jones. 10 B. Mon., 18; Cox vs. Taylor. 9'East., 310; Soulsby vs. Nevins. 8 B. Mon., 199-200; Augusta vs. Perkins. 17 B. Mon., 332; Master son vs. Hagan. 18 B. Mon.,. 546; Walker vs. Mitchell.
65 Ky. 286Commonwealth ex rel. Hooper v. Henshaw (1867)
A suit in equity in the circuit court against the first and superseded guardian of the infant relators, to compel him to settle his fiducial accounts, and pay to the present guardian the amount found to be in his hands, is an appropriate remedy. A reference of the accounts of such guardian to a commissioner, by the county court, for settlement and report, will not bar a proceeding against him and his sureties in the .circuit court.
65 Ky. 288Carter v. Carter (1867)
CASE 74 — PETITION ORDINARY APPEAL FROM METCALFE CIRCUIT COURT. CITED— Civil Code, sec. 16. 18 B. Mon., 662 ; Watson vs. Gabby. 14 B. Mon., 145-6; Brown, Sf-c., vs. Alden. MSS. Opn., J856; Fields vs. Groves. 1 Metcalfe, 488; Smith and wife vs. Long, dpc. 2 Rev. Stat.,p. 16.
65 Ky. 289Oneil v. Miller (1867)
CASE 75 — PETITION EQUITY APPEAL PROM MARION CIRCUIT COURT. CITED— Act of March 10,1856, 1 Rev. Stat., 553. Act of March 8, 1862, Myers' Sup., 239. 2Stojp's Equity, 9th edition, sec. 10365, 1040. CITED— 2 Kent's, Com., 533. 5 Page's Repts., 49 ; King vs. Donnelly. 3 Humphrey, 442; Fish vs. Arrowsmith. 6 Gratton, 174. Act of March 2, 1860; Myers' Sup., 533. CITkD — ■ 2 Kent's Commentaries, 577, vol. 4, p. 138. 2 Marshall, 334 ; Hamilton vs. Wagner. 2 Dana, 479; Thomas vs. Southard. 13 B. Mon., 533; Sanders vs. Davis. CITED— 6 M. G. and Scott, 136; Burrill on Assignments, 314. 6 B. Mon.; Rinehart vs. Bank of Kentucky. 11 Wheaton, 78; Brooks vs. Marbury. 2 Story's Equity Jurisprudence, sec. 10365. 3 Sim., 1; Garrard vs. Lord Lauderdale. 3 Merw., 767; Wallyn vs. Coults. 3 Sim. R., 14. 4 Russ. R., 6; Page vs. Broom. 2 Mylne Keen, 492 ; Acton vs. Woodgate. 4Johns. Ch., 522, 529 ; Nicoll vs. Mumford. 11 Wendall, 240-8; Cunningham vs. Freeborn. 8 Robinson's La., 262, 412. 16 Alabama, 560 ; 17 Alabama, 556. 3 McLean, 177; 11 Wheaton, 78. 7 Peters, 608, 613 ; 6 B, Mon., 252. 4 Mason, 206 ; JSalsey vs. Whitney. Burrill on Assignments, 418; 4 Pickering, 522. 1 Morris, 296; 6 Humphrey, 313. Hill on Trustees, side page, 215. Adams' Equity, side page, 38. 4 Metcalfe, 213 ; Millet vs. Pottinger. 2 Metcalfe, 336; Hampton, 8fc.,vs. Morris, <^e. 1 Metcalfe, 458; Terrill, Ifc., vs. Jennings, fyc. 3 Metcalfe, 392; Commonwealth vs. Sims.
65 Ky. 296Leathers v. Commercial Insurance (1867)
CASE 76 — PETITION ORDINARY APPEAL FROM KENTON CIRCUIT COURT. CITED— 1 Kent's Commentaries, s. p. 55, 56, 66, 67. Hatteck’s International Law, p. 357, sec. 9. Wheaton’s International Law by Lawrence, ed. 1863, p. 551, sec. 15, and note 176. 1 Duer on Insurance, p. 478. CITED— 'Marshall on Insurance, vol. 1 ,pp. 36 and 44.
65 Ky. 301Robertson v. Lemon (1867)
CASE 77 — PETITION EQUITY APPEAL PROM HARRISON CIRCUIT COURT. CITED— 11 B. Mon., 367. 13 Johnson, 50,; Burnett vs. Jenkins. 3 Cain's Cases, 199 ; Stoats vs. Ten Eyck. 2 Bibb, 415. 2 Bibb, 590. 3 Bibb, 175. 4 Dana, 453. 9 B. Mon., 49. 6 Wheaton, 118; Hopkins vs. Lee. 2 Parsons on Contracts, pp. 500, 502. 5 Johnson, 49; Moms vs. Phillips. 1 Parsons on Contracts, 187, title Eviction. CITED— 2 Bibb, 278; Cox's heirs vs. Strode. 3 Cains, 111. 3 Monroe, 348. 2 B. M., 275.
65 Ky. 307Steir v. Robinson & Co. (1867)
1. The claim óf a party to goods attached as the property of another person will not be considered fraudulent when supported by the direct evidence of two witnesses corroborated by the facts, that the goods necessary to replenish the stock in the store were, from time to time, purchased in his name and on his credit, and that he kept the store insured as his own, and rented the house in which it was kept. 2. It is a well-settled principle, applicable to private sales of personal property, that where such sales are made without any change of possession from the seller to the buyer, they are fraudulent and void as to creditors; and the fact that the vendee at the time resides with the vendor, does not take the case out of the operation of this rule of law. (Halbert, $c., vs- Grant, 4 Monroe, 584; Waller vs. Oralle, 8 B. Monroe, 11.)
65 Ky. 311Cantrell v. Hewlett (1867)
1. After a suit has been transferred by the plaintiff to a third persou who is not a party to the action, and the defendant has been notified of such transfer, the defendant cannot compromise with the'plaintiff for a dismissal of the action. An order of dismission thus secured was properly set aside by the circuit court, and on his motion the purchaser was properly made a party plaintiff and the judgment rendered for his benefit. 2. The testimony of a deceased witness taken on a former trial of the same cause between the same parties, may be proved orally and admitted as competent evidence. (Thompson vs. Blackwell, fie., 17 B. Monroe, 624; 1 Greenleaf, section 163.) And the statements contained in a bill of exceptions of the testimony of a deceased witness are „ entitled to as much verity as the oral testimony of any witness to establish such evidence. (Baylor vs. Smiihers, 1 Monroe, 6.)
65 Ky. 318Thompson's adm'r v. Coppage (1867)
CASE 80 — PETITION ORDINARY APPEAL FROM MARION CIRCUIT COURT.
65 Ky. 320Guishaber v. Hairman (1867)
CASE 81 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. CITED— Hill on Trustees, page 420. Clancy on Husband and wife,p. 262. 4 Dana, 610; Bridges vs. Wood. 5 B. Mon., 113; Griffith vs. Griffith. 2 Metcalfe, 504; Johnston vs. Ferguson. 1 Iredell’s Equity R., 452; Steel vs. Steel. 1 American Leading Cases ; Halme vs. Tenant. 5 J. J. M., 226; Long’s adm’rs vs. White, fyc. 8 Ala. R., 399; Vance vs. Will. 5 Taunt., 47; Lee vs. Muggeridge. 1 Metcalfe, 149; Ehrman vs. Kendrick. Civil Code, sec. 569. Rev. Stat. chap. 40, sec. 9. CITED— 2 Metcalfe, 503; Ferguson vs. Johnson. Civil Code, secs. 566, 569. 3 Metcalfe, 424; Smith vs. Ferguson. 10 B. M., 88; Dudley vs. Price’s adm’r. 1 Strange, 94; Lloyd vs. Lee. 2 Sandf, 311; Watkins vs. Halstead. Barnewall and Adolphus, 811; Littlefield vs. Shee. 8 Adolphus and Ellis, 467; Myer vs. Harworth. 5 Taunt., 37 ; Lee vs. Muggeridge.
65 Ky. 322Jennings v. Crider (1867)
CASE 82 — PETITION EQUITY APPEAL PROM OLDHAM CIRCUIT COURT. CITED— 6 Dana, 168 ; Blisor vs. Scott. 3 B. M., 50; Burks vs. Chrisman. Civil Code, sections 728, 729. 2 Revised Statutes, 398. 12 B. Mon., 361-2.
65 Ky. 326Bank of Hopkinsville v. Rudy (1867)
1. Three notes, payable annually, were executed and a lien retained on land to secure them. Judgment on the first note was replevied. Jno. Rudy, a surety therein, paid the replevin bond, and it was assigned to him by plaintiff’s attorney. John Rudy also paid the second note, which was indorsed, “This note has’been paid to. me by Mr. John Rudy.” The holder of the third note brought suit to subject the land, and made Rudy a party, who claimed that he was, by substitution, entitled to the lien reserved on the land to secure the two original notes paid and hel(l by him. Held by the court — That the lien of the holder of the third note on the land was paramount to any claim of Rudy. 2. The payment of a replevin bond by a surety therein, and its assignment to him, in pursuance of section 8, chapter 97, Revised Statutes, transfers to the assignee the benefit of any lien existing under or by virtue of the bond assigned; but it does not operate to revive, as against third parties, any equity or lien which had been merged or waived by the execution of the bond. 3. “This note has been paid to me by Mr. John Rudy March 3d, 1866,” being indorsed on the back of a note, is not a sufficient transfer of the note to entitle Rudy to the benefit of a lien by which it was secured, as against third parties. The court say — “We are of the opinion that such payment discharged the holder’s lien, as originally reserved, for the debt, and Rudy had no right of action to enforce it; nor did be acquire any lien for the money so paid which was not subordinate” to that of a third party who held a note similarly secured. (Oden m. Mlioti's ex'r, 10 B. Monroe, 315.)
65 Ky. 332Watson v. Avery (1867)
CASE 84 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. CITED— Tyler's Ecclesiastical Law, secs. 104, 841. 7 B. Mon., 481; Gibson vs. Armstrong. 6 Wright, 503; Sutter vs. Trustees Dutch R. Church. 18 Vert, 511; Smith vs. Nelson. 7 Hoisted; Den vs. Bolton. 4 Wheat., 603; Commonwealth vs. Green. 1 Buchanan's Ten Years Conflict, p. 427. Innis' Law of Creeds in Scotland. 5 Scotch Court of Session Rep., new series, p. 665. 3 B. Mon., 257; Shannon vs. Frost. Cunningham's Church History of Scotland, pp. 480, 370, 439, 446. Hetherington's History of the Church of Scotland, pp. 51-2 and 81-3. Treaty of Union, A. D. 1707, and Act of Parliament in Appendix to Hetherington's History. 2 Parsons on Contracts, chapter 1. Kent's Commentaries, page 448*. Westminster Form of Church Government. Minutes of Synod at Henderson, and General Assembly at Saint Louis. Baird's Assembly's Digest, pp. 716, 301, 252. Form of Government, chap. 13, sec. 2; chap. 9, sec. 6; chap. 8, secs. 1 and 2; chap. 10, secs. 8, 1; chap. 11, sec. 4. Appeal and Complaints, chap. 4, sec. 16; chap. 6, secs. 1, 11, and 12; chap. 7, secs. 3 and 4. Book of Discipline, chap. 4, sec. 23; chap. 6, sec. 12; chap. 7, secs. 1, 3, 4. Proceedings of General Assembly at St. Louis, llthday. Baird's Digest, “ Assemblies,” Second Presbytery. CITED— 18 Vt., 511; Smith vs. Nelson. 3 B. Mon., 253 ; Shannon vs. Frost. 7 How., 40; Luther vs. Borden. 3 How., 589 ; Permoli vs. First Municipality. Acts of the Apostles, 18; 14,15, and Barnes' Notes. 20 Johns., 12; Dieffendorf vs. Reformed Gal. Church. 9 Barb., 134; Robertson.vs. Bullions. 1 Edw. Chy., 592; Bowden vs. McLeod. Penn. Presbyterian Church Case, 591. 4 Wharton, 503; Commonwealth vs. Green. 41 Penn., 14; McGinnis vs. Watson. Brightly's Reps., 234; Shilton vs. Webster. 3 Barr, 282; German Reformed Church vs. Seibert. 4 Zabr., 659 ; Den vs. Pilling. CITED— Session Acts 1853-4, vol. 2,p. 269. Printed Minutes General Assembly 1863, p. 43. 7 B. Mon., 653; Kane, SfC., vs. Pilcher. 7 Alabama, 484; Dupuy vs. Roebuck. 9 Alabama, 803 ; Stewart vs. Conner. 26 Alabama, 413 ; Ewing vs. Peck. 27 Miss. (5 Cush.), 227. 8 B. Mon.', Hadden vs. Chorn. Form of Government, chap. 11, sec. 4, chap. 13, sec. 2. 7 Dana, 195; Curd, fyc., vs. Wallace, <^e. Book of Discipline, chap. 1, sec. 1, chap. 7, secs. 1-22. 7 B. Mon., 481; Gibson vs. Armstrong. Baird's Digest, 144, 68, 152, 165-6^233 ¿o 246, 114-15, 87, 66, 67. 5 B. Mon., 573; Lewis vs. Harbin, fyc.
65 Ky. 398Anderson's adm'r v. Whitlock (1867)
Anderson, "Whitlock & Co. being the owners of mills in Christian county in 1862, in the regular course of their business, whilst that section of the State was under Confederate rule and occupied by the Confederate army, came into possession of about eight thousand dollars in Confederate currency, which, after the Confederate army ceased to occupy that part of the State, became of little or no value, and thereupon the partners agreed that Anderson should take this money south and invest for the benefit of the firm. Anderson took the money south, and engaged in buying and shipping cotton to St. Louis and New York, and made large profits by his transactions, and refused to account to his partners for any part of the profits. Held— That, as Anderson invested the partnership effects, his partners are entitled to share the profits, as, upon the other hand, if his investments had been unfortunate or disastrous, they would have been bound to have shared the losses.
65 Ky. 407Miller's heirs v. Antle (1867)
1. The purchaser of a tract uof land, at a commissioner’s sale, agreed with the owner of the land, before the sale, that he would buy it, and that, if the owner would pay his proportion of the price within a specified time, he should retain a specified quantity of the land. The purchaser held the title thus acquired in trust, and was bound to convey^ upon payment as agreed, to the original owner, in pursuance of the agreement. 2. Receipts for money “for land," shown to he the land in contest, fortified by the admissions of the personal representatives, constitute a 'sufficient written memorial of all the statute requires to be in writing.
65 Ky. 410Monohon v. Caroline (1867)
CASE 87 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. CITED— 16 B. Mon., 221; Jackson vs. Collins. 13 B. Mon., 191. 2 Rev, Stat., art. 9, 380 and 462. 18 B. Mon., 20. 16 B. Mon., 340, 367 ; Embry vs. Taylor. 4 Desaus. Rep., 266, and N. C. Rep., 353. 1 Metcalfe, 515. 14 B. Mon., 296. 3 Metcalfe, 471. 13 B. Mon., 192; Glover, ¿pc., vs. Allen, Spc. 5 Littell, 270; Chasteen vs. Ford. 2 Duvall, 334-340 ; Dunlap vs. Shreve's ex'rs. CITED— Civil Code, section 894. 4 Dana, 24*5; Aleck vs. Tevis. 5 Littell, 268; Chasteen vs. Ford. 16 B. Mon.; Embry vs. Taylor. 7 B. Mon., 405; Graham vs. Sam et al.
65 Ky. 415Marshall v. Marshall (1867)
CASE 88 — PETITION EQUITY APPEAL EROSI TAYLOE CIECUIT COURT. CITED— 4 Mon., 157; Crozier vs. Young. 1 Dana, 531; Doyle, fyc., vs. Sleeper, <fc. 2 Metcalfe, 206; Todd vs. Hartley. 5 J. J. M., 554; Lyne vs. Bank of Ky. Act of 1796. Civil Code, sec. 474. CITED— 1 American Leading Cases, pp. 67 to 73. 4 Wash., 1,29, 137. 1 Robinson (Va.), 125. 23 Maine, 22. 2 Bland, 26, 34. 1 Stant. Rev. Stat., 546. 2 Rev. Stat., 230. 4 Metcalfe, 143. 3 Dana, 231; Duncan vs, Forsythe. 7 J. J. M., 525; White vs. Graves. 2 B. Mon., 346-7; Lewis vs. Love's heirs. 5 J. J. M., 555. 8 Dana, 263. 2 Bibb, 204.
65 Ky. 424Engleman v. Craig (1867)
CASE 89 — PETITION EQUITY APPEAL PROM LINCOLN CIRCUIT COURT. CITED— Story’s Equity, vol. 1 ,p. 173, secs. 152, 157, 177. 4 Monroe, 238; Stone, Sfc., vs. Ramsey. Civil Code, sec. 167. 1 Johns., 139; Schemerhorn vs. Vanderheyder. 7 Johns., 341; Maigley vs. Hauer. 2 Johns. Chy., 405; Bostford vs. Burr. 1 Johns. Chy., 429.
65 Ky. 428Taylor v. Young's adm'rs (1867)
1. ' Exceptions to a commissioner’s report, like special demurrers, admit eyery thing not thus excepted to. When the exceptions were overrdl£d there was no litigation in the circuit court, and therefore the defendant could not have been prejudiced by a judgment which he could not have avoided or resisted on any subsequent day of the term; and although the judgment was rendered on a day before it was set for trial on the docket, the judgment will not be reversed for that cause alone. 2. The master in chancery has the inherent power to take and report testimony concerning matters of fact referred to him by his court. In such inquiries, formal depositions before an examiner are neither necessary, nor certified otherwise than by the master in his report. 3. A partner having the partnership funds in his hands after the' dissolution of the copartnership, and knowing himself to be indebted to his copartner, and refusing to offer or to make payment, may justly be held liable for interest on the amount thus withheld from his copartner. (Bowling vs. Dobyns, 5 Dana, 434.)
65 Ky. 433Parks v. Fry (1867)
Where legal title to land is held by a trustee, he shall be a party to the proceedings for its sale, and in all other respects the proceedings for the sale of land held in trust for infants shall be the same as where they hold the legal title, except, that the trustee shall give bond and security, instead of the guardian, where the proceeds of the sale are to go into the hands of such trustee. (Nec. 545, Civil Code.)
65 Ky. 439Cromwell's heirs v. Mason's heirs (1867)
1. A sale of infants’ real estate under chapter 86, Revised Statutes, although there had been neither an assessment nor a bond as required, is not void in any such sense as to prevent a decretal confirmation of the sale, conformably with the supplemental statutes enacted for that purpose, and the sale having been so confirmed, the title of'the purchaser became perfect. {Thornton vs. McGrath, 1 Duvall, 349. . 2. Having elected to dismiss their first petition to set aside the sale of land (made under chapter 86, Revised Statutes), and prosecuted their petition to enforce a lien for unpaid purchase money, the plaintiffs are estopped from again assailing the sale as void. 3. Real estate insusceptible of division without material impairment of its value is authorized to be sold by the act of February 15, 1866 {Myers’ Supplement, 151), and also by section 543 of the Civil Code. A sale made in accordance with either of these enactments is valid and passed the title.
65 Ky. 442Hedges v. Wallace (1867)
1. The purchaser of a lot of hogs in the fall of 1861 is liable for the contract price, although the hogs were purchased for the use of the Confederate government; and common reputation in the neighborhood of what the intention of the purchaser was, in purchasing the hogs, , was not competent even to fix a knowledge of the fact on the seller. 2. The mere knowledge of the illegal purpose for which goods are purchased will not affect the validity of the contract of sale; but there must be some participation or interest of the seller in the act itself. (Story's Conflict of Laws, sec. 253.) The authorities show that it must be a part of the arrangement, and the seller must participate in the intent to accomplish the illegal act. (See Nov. No. American Law Register, 40 Phillips vs. Hooker, and authorities cited; Hilliard on Sales, 376; Armstrong vs. Tolor, 11 Wheat., 258; Hoter vs. Earl, 3 ' Gray’s Mass., 482.) 3. Where goods are bought from an enemy, even in his own territory, by a citizen of the United States, the sale is valid, and the price may be recovered, although the act might be a misdemeanor and the property liable as a prize. (Coolidge vs. Inglee, 13 Mass., 26.)
65 Ky. 446Caldwell v. Caldwell (1867)
1. Whenever five dollars or more in money or property shall have been won and lost at unlawful gaming within twenty-four hours, and the game or play at which the money or property was won and lost has terminated, and the parties shall have ceased to play, any creditor of the loser, who may choose to assert it in the mode prescribed, will have acquired sítela a contingent vested right to the sum or value of the property lost in virtue of the statute as could not be divested by the loser winning at a game played at a subsequent and different time from the winner at the previous game; and the paoney lost at a subsequent time or game cannot be set off against what was previously won, in an action brought by a creditor of one who first was loser. (1 Reo. Slat., 561 — 2.) 2. In actions to recover money'lost by unlawful gaming, a former judgment recovered or compromised, and payments made in good faith, will be a bar to subsequent actions for the same cause of action to the extent of such payments, &e. 3. Section 113, Civil Code, makes it the duty of the court, upon motion of the defendant, before defense made, to strike out of the petition any cause or causes of action improperly joined with the others. But by section 114 it is provided that the objection shall be deemed to be waived, unless madé before defense.
65 Ky. 453Terrill v. Rankin (1867)
R. Unless the order of the superior officer was authorized by the laws of war, it conferred no legal authority, and, consequently, the act of taking money by force out of the bank in Hopkinsville, Kentucky, m December, 1864, by a Confederate quarter-master, acting under the order of his commanding general, was illegal, and he is peisonally responsible for all the consequences of his own unjustifiable and tortious act. 2. “Private property on land is also exempt from confiscation, with the exception of such as may become booty in special cases, when taken from enemies in the field or in besieged towns, and of military contributions levied upon the inhabitants of the hostile territory.” “ The general rule derived from national law is, that no use of force against an enemy is lawful unless it is necessary to accomplish the purposes of war. The custom of civilized nations founded upon this principle has therefore exempted the persons of the sovereign and his family, the members of the government, women and children, cultivators of the earth, artisans, laborers, merchants, men of science and letters, and generally all other public or private individuals in the ordinary civil pursuits of life, from the direct effect of military operations, unless actually taken in arms, or guilty of some misconduct in violation of the usages of war by which they lose their immunity.1' [Lawrence’s Wheaton, page 596.) 3. As the conflicting parties had equal belligerent rights, the Federal enactment of 1862, authorizing the taking of all sorts of property in the revolting States, might perhaps have authorized a retaliatory act by the Confederate government. But no such act has been pleaded, or is judicially known by the coui't; and without some such authority the Confederate general had no right to order the assault on the bank, and the seizure of the money of a non-combatant citizen, in violation of the'international laws of War. 4. The Confederate government and its officers, and soldiers are estopped from asserting or exercising any belligerent act against the property of peaceable citizens of Kentucky. The Confederacy had assumed that Kentucky was one of her sisterhood, and had organized a provisional government for her; claimed political sovereignty over her; had elected a Governor for her, and drew from her bosom as a Confederate State full representation in her Congress. Confederate officers, &c., are thus precluded from calling the peaceable citizens of Kentucky enemies, or treating their property as enemies' property ; and this estoppel prevents the defendant from pleading that he took the property of an enemy, and had the belligerent right to do so. 5. The act of February 28, 1867 (An act to quiet all disturbances growing out of the late rebellion), is unconstitutional in so far as it affects or was intended to affect civil remedies/or private wrongs.
65 Ky. 463Hyatt v. James' adm'r (1867)
CASE 9G — PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. CITED— 2 Brightly, 193. Act of Congress of July 13, 1861. Martin vs. Hortin, Sf-c. 2 Bush,p. 398; Anderson’s adm’r vs. Whitlock, fyc. CITED— 1 Duvall, 20 ; LaugJilin vs. Dean. 1 Duvall, 232-; Bland vs. Adams Express Co. 16 Johnson’s Rep., 443 ; Griswold vs. Waddington. 1 Metcalfe, 402; Morris vs. Doniphan.
65 Ky. 468Jeffersonville Railroad v. Cleveland (1867)
CASE 97 — PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. CITED— 35 Ind. Rep., 434; Bausemer, vs. Toledo Railroad Company. CITED— Angelí on Carriers, chap. 7, sections 229, 315.. 1 Strobhart’s S. C. Rep., 203 ; Singleton vs. Hilliard. 2 E. D. Smith’s N. Y., 95; Barclay vs. Clyde. 14 Georgia Rep., 277 ; Rome Railway vs. Sullivan. 32 N. H. Rep., 532; Moses vs. Boston and Maine R. R. 7 Foster’s Rep., 86; Smith vs. Nashua and Lowell R.R. Redfield on Railways, secs. 6, 7, 8, 130,p. 253. Kent’s Commentaries, 604, 605. 1 Metcalfe, 558 ; Huston vs. Peters, Hardin <§• Co. Session Acts, January, 1867,p. 42.
65 Ky. 476City of Columbus v. Grey (1867)
CASE 98 — PETITION EQUITY APPEAL PROM HICKMAN CIRCUIT COURT. CITED— Act, page 501, Session Acts 1859-60, vol. 1. 8 Dana, 50; Kennedy's heirs vs. Trustees of Covington. 4 Johnson, 81 ; Thompson vs. Gregory. 2 Wendell, 517 ; Provost vs. Colder. 11 Wendell, 35 ; Dygert vs. Matthews. CITED— 8 B. Mon., 232; Rowan's ex'rs vs. Portland. 16 B. Mon., 803 to 807; Newport vs. Taylor's ex'rs. Revised Statutes, chap. 39, sec. 4. 8 Dana, 50; Kennedy's heirs vs. Covington.
65 Ky. 478Walrath v. Viley (1867)
1. Although the lower court erroneously rejected a deposition, the court of appeals will consider the effect of the rejected evidence, and if, when admitted, it could not change the result, the court will not, for that cause alone, reverse the judgment. 2. If Walrath authorized his name to be used as the partner of Lee, and the corn was sold to them upon the faith that he was a partner, and as such bound for the price, he should not be permitted to disprove the fact which he had admitted, and thereby induced the sale of the corn to them.
65 Ky. 480Grigsby v. Breckinridge (1867)
CASE 100 — PETITION EQUITY APPEAL FROM MERCER CIRCUIT COURT. CITED— 1 Metcalfe, 402. 18 B. Mon., 71; Bennett, fyc., vs. Garrett, Sfc. 5 Bouvier's Bacon's Abridgement, 199. 2 Story's Equity Jurisprudence, 946 and 947. 4 Kent, 465. Bouvier’s Law Dictionary, vol. 2, p. 31. 2 Atkins, 341; Pope vs. Curl. 3 Edwd. Chy. R., 515; Wetrnore vs. Scovill. 2 Story’s Reports, 319. Clancy on Husband and Wife, pp. 280-1. CITED— 2 Atkins, 342; Pope vs. Curl. 4 Barrow; Webb vs. Rose. Amber, 737; Thompson vs. Stanhope. Swanston, 42; Gee vs. Pritchard. 1 Ball <5* Beatty, 207; Earl of Granard vs. Duncan. 4 Barrow; Miller vs. Taylor. Brown’s P. C.; Forrester vs. Waller. 4 Davis’ (N. Y.) R., 100; Woolsey vs. Judd. 2 Story’s Rep., 100; Folsom vs. March. Story’s Equity Jurisprudence, secs. 942 to 949. 3 Edwards’ Ch. R., 375; Wetrnore vs. Scovill. 2 Barbour’s Ch. R., 320; Hoyt vs. McKenzie. - 2 Edin. Rep., 329; Duke of Queensberry vs.-iSteblian! ' 2 Merivale; Southey vs. Sherwood. Ambler, 694; Macklin vs. Richardson. 5 D. ¿p E., 245; Coleman vs. Nathan. 4 McLean’s C. C. Rep., 300; Bartlett vs. Crittenden. C^vil Code, secs. 118, 153, 167, 168, 672, 174, 175. 18 B. Mon., 71; Bennett, ¿pc., vs. Garrett, ¿pc.
65 Ky. 514Holeman's ex'r v. Holeman's heirs (1866)
1. The power of a sheriff to enforce his levy upon land, by a sale thereof, ceases by the death of the execution defendant who is the owner of the land. The sale of the land of such defendant made after his death, and future conveyances thereof, are void. S. The death of a party to an execution abates the execution as to such party. 3. The death of an execution defendant, although it abates the execution as to such defendant, does not discharge a lien upon his land which was created by a levy made thereon prior to his death. Such lien may still be enforced jn equity as other demands against his estate, having a priority ot o rim, as provided in chapter 37 of the Revised Statutes. Note by Reporter. — The opinion in the case of Huston vs. Duncan (1 Bush, 205) was rendered upon the same record of this case. That opinion involves mainly the same points, and should be examined in connection with the foregoing.
65 Ky. 520Smith's ex'r v. Smith (1866)
1. “If an infant dies without issue, having title to real estate, derived by gift, devise, or descent, from one of his parents, the whole shall descend to that parent and his or her kindred,” &c., &c. The foregoing provision of sec. 9, chap. 30, 1 Slant. Rev. Stat., 421, does not embrace real estate derived by gift, devise, or descent, from a grandparent. . 2. Real estate derived by an infant, by devise from his maternal grandfather, if he dies an infant without issue, will descend to the father of such infant.
65 Ky. 526Louisville & Nashville Railroad v. Covington (1866)
CASE 3 — PETITION EQUITY APPEAL FROM WARREN CIRCUIT COURT. CITED— Civil Code, sec. 529. Ib., secs. 530, 531. Angelí Ames on Corporations, p. 191, sec. 195. Ib., p. 891, sec. 773. Ib.,p. 899, secs. 776 and 111. Acts 1835-6, p. 121. Acts 1850-1, vol. 2, p. 442. Acts 1853-4, vol. 2, p. 195. Acts 1855-6, vol. 1, p, 188.
65 Ky. 532Hall v. Hiles (1866)
CASE 4 — PETITION EQUITY APPEAL EltOM SCOTT C1ECVIT COVET. CITED— 2 Duvall, 20 ; Griswold vs. Hepburn. CITED— U. S. Statutes at Large, pp. 345, 678, 710, 711, 820,
65 Ky. 535Latimer v. Glenn (1866)
CASE 5 — PETITION EQUITY APPEAL FROM BOONE OIRCOIT COURT. CITED— 4 Met., 213; Mellet vs. Poltinger. 1 Met., 403; Short vs. Tinsley. 4 B. M., 430; Bank U. S. vs. Heath. 3 B. M., 554; Brown vs. Foree. 7 B. M., 357 — 9; Brown vs. Smith. 5 B. M., 311; Young vs. Stalling. 1 /. /. M., 358. 3 Mon., 186; Mitchell vs. Maupin. 4 Met., 80. 6 B. M., 609. 7 B. M., 357. 6 Dana, 185. 1 Dana, 269. 5 B. M., 306. 3 Dana, 511. 5 J. J. Mar., 574. 4 Met., 86; Maraman’s ad’r vs. Marama.n. 4 Met., 80; Ward vs. Crotty, fyc. CITED— 1 Ky. Rev. Stat.,,546. 7 Dana, 107; Whitesides vs. Norris. . 8 B. M., 525; Martin vs. Trigg. 4 Met., 143; Hurdt, fyc., vs. Courtenay, Syc. 8 B. M., 525; Martin vs. Trigg. 1 Leading Cases in Equity, 386. 3 Met., 474; Hoc/cer and others vs. Gentry. 2 Leigh, 49; Blow vs. Maynard. 3 Mon., 186; Mitchell vs. Maupin. 1 J. J. Mar., 390; Gully vs. Grubbs. 2 Leigh, 40-47; Blow vs. Maynard. 2 Johnson’s Ch. R., 490; Rcade vs. Livingston. 3 Johnson’s Ch. R., 501; Readc vs. Livingston. 4 Met., 145; Hurdt, Syc., vs. Courtenay, fyc. 4 Met., 59; Ward vs. Crotty, Syc. Civil Code, sec. 674. 2 Met., 517. 4 Met., 86; Maraman’s ad’r vs. Maraman. 4 Met., 139; Courtenay, Syc., vs. Hurdt, Syc. 7 Dana, 259; Stephens’ ad’r vs. Barrett’s ad’r. 6 Dama, 265; Harrison vs. Campbell. CITED— 1 Rev. Stat., chap. 40, sec. 2. 1 Rev. Stat., chap. 22, sec. 1, subd. 5. 3 Litlell, 434; Jones’ heirs vs. Henry Pitt’s heirs. 13 B. M., 501; Kinnaird, fyc., vs. Daniils, <§-c. 4 Met., 60; Ward vs. Crotty, Syc. 4 Met., 86; Maraman’s ad’r vs. Maraman. 5 B. M., 306; Marshall, SfC., vs. Hutchison, Sj-c. 4 Met., 143; Hurdt, fyc., vs. Courtenay, fyc. 5 B. M., 308; Young vs. Stalling. 1 Met., 397; Short vs. Tinsley.
65 Ky. 550Stewart v. Barclay (1866)
Stewart, by will, gave to his wife “ the sole control, management, and use of the income arising from his estate, without accountability to any one, for the support of herself and the education of their children;” and by a codicil he gave to his wife “ the sole control of all the income from his estate, without accountability to any one.” JBeld— That if this was not a devise of the estate itself to her in fee, it certainly invested her with a life estate therein. Stewart left four children — one a daughter, married, and died, leaving a child; and the child also died in infancy before the death of its grandmother* Stewart’s wife. Held — That the father of this grandchild took no part or interest in the estate of Stewart, either as tenant by the curtesy to his wife, or as heir to his infant child. The interest of this married daughter in said estate in remainder, at her death descended to her infant child, and at its death passed by descent to the brother and sisters of its mother, and as said interest was not owned and possessed by her at the time of her death, and was not held by another for her use, her husband was not entitled to any interest whatever in said estate.
65 Ky. 555Rankin v. Turney (1866)
1. In an action for the recovery of usurious interest paid about two years before the commencement of the suit, it was erroneous to sustain a demurrer to the petition on tlie ground that it showed that more than one year had elapsed from the' time the cause of action accrued. 2. When time operates as a peremptory and not merely as a presumptive bar — as a statutory limitation and not as evidence that there is no enforceable cause of action — a general rule of pleading treats it as waived, unless pleaded as a statutory bar. 3. A demurrer to a petition upon the ground that it discloses a bar to the action by lapse of time or statute of limitations, cannot be sustained, unless the petition shows not only a sufficient lapse of time, but the non-existence of any ground of avoidance.
65 Ky. 557Smith v. Kelly (1866)
CASE 8 — PETITION EQUITY APPEAL FROM HENRY CIRCUIT COURT. CITED— 4 Met., 173-4 ; Sechrist, vs. Edwards, Sfc. 1 Duvall, 259 ; Sarah vs. Miller, fyc. 1 Duvall, 203 ; Harrell, Sfc., vs, Harrell, SfC. 4 Met., 163. CITED— 4 Met., 163 ; Sechrist vs. Edwards, fyc. 14 B. M., 483; Quisenberry's devisees vs. Quisenberry's heirs, CITED— 1 Williams on Executors, 40, 41. 1 Jarman on Wills, 41. 1 B. M., 401; Beall vs. Cunningham. 1 Duvall, 203 ; Harrell vs. Harrell.
65 Ky. 559Commonwealth v. Thompson (1866)
A circuit court clerk is not liable for the loss of a debt which resulted from his mistake in omitting to enter judgment, unless the loss or omission was caused by his gross negligence or fraud. .The court farther say: “It seems to us, that, in the absence of fraud, culpable negligence, or willful wrong, on the part of the clerk, the orders and judgments drawn up by him, although erroneous 'and prejudicial to the rights of parties, are, when approved and signed by the court, to be presumed to be the acts of the court, rather than the clerk, for which, for obvious reasons, and on well-settled principles, no right of action exists."
65 Ky. 561Cornwall v. Eastham (1866)
CASE 10 — PETITION EQUITY APPEAL FROM GRBENJ1P CIRCUIT COURT. CITED— 2 Rev. Stat., 516. CITED— 2 Stant. Rev. Stat., 576-7-20-1-2. Code, section 38 — 9. CITED— 2 Rev. Stat., 521.
65 Ky. 565Bowman v. Curd (1866)
On the 5th of April, 1860, B transferred to C a note on W for one thousand " dollars, due the 10th February, 1862, and bound himself to pay Ó¡ one thousand dollars with interest, on ten days’ notice, if W did not' meet the note when due. On the 10th of November, 1865, G gave, notice to B that W had not paid the note, and ten days thereafter instituted suit against B, who resisted judgment, on the grounds thát payment had not been demanded of W. and the long delay in giving notice of his failure to pay. Held — No demand of W was necessary;' but as C had delayed an unreasonably long time after the note fell duo' ■ to notify B of its non-payment, B was released from liability on the contract of assignment.
65 Ky. 568Kash v. Miller (1866)
The legal restriction of taxation of costs to three witnesses to the same fact does not imply that a party shall examine only three, if he choose to do so at his own cost. It was error in the circuit court to restrict the plaintiff to three witnesses and refuse to permit him to examine others on the question of the identity of a horse.
65 Ky. 570Commonwealth v. Palmer (1866)
CASE 13 — INDICTMENT APPEAL FROM JEFFEESON CIRCUIT COUBT. CITED— 2 Rev. Stat., 370. 13 Howard, 115; Mitchell vs. Hammony. CITED— 1 Bishop’s Crim. Law, 213, sections 213 and 48 to 68. 1 Kent, 410. 21 Howard, 506 to 516, inclusive. O’Brien on Court-Martial, 25. Bennett on Court-Martial, 11 to 14, inclusive. Attorney General Cushing’s Opinion, Feby. 5, 1863. 1 Bishop’s Criminal Law, notes 2 and 3, page 64.
65 Ky. 580Humphreys v. Walton (1866)
1. On an issue and trial of facts by a jury or the court, a motion for s new trial is essential to correct the errors growing out of the eyidence or instructions before an appeal can be entertained by the court of appeals. 2. A new trial is a re-examination in the same court of an issue of fact after a Verdict by a jury or a decision by the court. (Civil Code, sec. 369.) 8. A motion for a new trial must be made at the term, the verdict or decision is rendered, and within three days after the verdict or decision was rendered, unless unavoidably prevented, except in that class of cases mentioned in subdivision 7 of section 369, Civil Code. 4. A judgment or final order may be reversed or modified by the court of appeals for errors appearing in the record. (Civil Code, sec. 575.) 5. If a party in whom no right of action exists should bring a suit, and this be apparent from his own petition, and the defendant should fail to answer, and judgment by default be rendered, yet he might have a reversal without any motion for a new trial, and in many other cases of errors appearing in the record.
65 Ky. 583Smith v. Payne (1866)
A division of slaves long acquiesced in, and ratified by open and notorious acts of ownership, by all the parties interested in them, should be regarded as estopping the parties, and those claiming under them, from disturbing the division.
65 Ky. 590Flynn v. Commonwealth (1866)
CASE KÍ — WARRANT, CITY COURT APPEAL PROM m’cRACKEN CIRCUIT COURT. CITED— 1 Rev. Stat., 563, chap. 42, sec. 6. Acts 1863-4, 493, secs. 5 and 7. Constitution of Kentucky, art. 13, sec. 12. Constitution of Kentucky, art. 10, secs. 10 and 11. 4 Blackstone, 5, 308. 1 Bouvier’s Inst., 72. 3 Mars., 465 ; Olds vs. Commonwealth. 3 Littell, 196 ; Harrison vs. Chiles. Criminal Code, secs. 299, 300. CITED— Crim. Code, 304, title 1, sec. 384. 1 Rev. Stat., 563, 140. Acts 1863-4, 494. Constitution of Kentucky, art. 4, sec. 1. 2 Rev. Stat., 563.
65 Ky. 594Trigg v. Trustees of Glasgow (1866)
1. The trustees of the town of Glasgow being authorized by law “to levy an ad valorem tax on the property, both real and personal, within said town, that is listed for State purposes, including the amount given in under the equalization law,” and all the taxable property in said town on the 10th of April being “subject to taxation,” and also all “the taxable property in said town which may have been removed without its limits between the 1st of January and 10th of April for the purpose of evading the tax, shall be listed for taxation.” Held— that money or other substantive thing in bank, or in the actual possession of its owner, within the town limits' — equalization property —-in Glasgow, was subject to the local tax, and that such as was elsewhere was exempt. 2. Upon the refusal of a party to list his equalization property in Glasgow, it was the duty of the assessor to report him to the board of trustees, and if, upon citation by the president of the board, the recusant fail- ’ ed to appear, or appearing, refused to communicate or swear to his equalization means in Glasgow, then, and only then, the assessor might have proceeded ex parte to assess such pretermitted property.
65 Ky. 598Waters v. Barral's heirs (1866)
CASE 18 — PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. CITED— 1 J. J. Marsh.,236; Breckinridge vs. Ormshy. 4 Greenleaf’s Cruise, 70, title 32, chap. 5, sec. 76.
65 Ky. 603Scott v. Wilson (1866)
CASE 19 — PETITION ORDINARY APPEAL PROM CHRISTIAN CIRCUIT COURT. CITED— 2 Story’s Equity Juris., secs. 1435-6-7. 2 J. J. Mar., 366 ; Markham vs. Todd. 4 Littell, 197 ; McKinley vs. Butler.
65 Ky. 606Edwards v. Ward (1866)
1. When a defendant presented to the State court a case in which he had a right of transfer to the United States courts, the State courts should proceed no further in the case. (Oorden vs. Longest, 16 Peters, 101.) 2. When the defendant, by his petition for a transfer to the United States court, disclosed the fact that his defense will involve the legal powers of the President of the United States under the Constitution, and questions arising out of the acts of Congress, as well as the constitutionality of such acts, the transfer should be made.
65 Ky. 608Bettis v. Bailey (1866)
Replevin bonds signed and delivered to the sheriff without date are valid and effectual. The sheriff should fill up the date to correspond with the date of delivery. (Logan vs. Doniphan, 2 J. J. M., 252; Clarke § Claines vs. Dell, 2 IAttell, 162.) If the sheriff should date the bonds to a day before the delivery, executions cannot legally issue on such bonds until they arc due, counting from the date of delivery; and if executions saould issue before the bonds are properly due, such executions, and sales of land under and by'virtue of executions thus issued, would pass no title to the purchasers who were plaintiffs in said executions.
65 Ky. 614Kevil v. Kevil (1866)
1. In an action controverting the validity of a will, in the circuit court, the successful party may be entitled to a new trial on the ground of the discovery of new evidence, for the purpose of making the case stronge’r in the court of appeals. 2. Gross inequality, apparently unjust or unreasonable, is not alone sufficient to invalidate a will which otherwise would be unassailable; but apparent inequality or unreasonableness in a testamentary disposition is entitled, in proportion to its degree of flagrancy, to some auxiliary influence on the question of capacity, or fraud, or controlling influence; and, unexplained and combined with other corroborating evidence, it may be entitled to great influence.
65 Ky. 618Commonwealth v. Reed (1866)
1. The Commonwealth has a right for its own use to recover in a civil suit against a sheriff and his sureties for a breach of covenant. 2. A sheriff who negligently fails to arrest one under indictment when he has a warrant commanding such arrest, or, having arrested one under . indictment, willfully takes insufficient bail, is liable in a civil action on his official bond for damages.
65 Ky. 621Strode v. Magowan's heirs (1865)
CASE 1 — PETITION EQUITY APPEAL PROM FLEMING CIRCUIT COURT. CITED.— 7 B. Mon., 132 ; Kuhl vs. Knauer. 2 Brock., 256 ; Stigall vs. Stigall. 3 A. K. Mar., 294; Finlay vs. Humble etal. 3 A. K. Mar., 326 ; Birney vs. Huren. 1 Greenleaf s Evidence, sec. 28, note 2. 2 Starkie’s Evidence, 196, part 17, Am. ed., Bastardy. 15 Geo. R., 155; Wright vs. Hides. 6 How. Rep., 550; Patterson vs. Gaines. CITED— 7 B. M., 132; Kuhl vs. Knauer. 8 B. M., 612; Remington vs. Lewis. 2 Bibb, 426. 13 B. M., 371; Jones vs. Letcher. 1 Greenleaf on Evidence, 116. 2' Greenleaf on Evidence, sec. 462. 3 Greenleaf on Evidence, sec. 461. Greslefs Equit. Evidence, 318. 13 Vesey, 511. 18 Vesey, 443; Walker vs. Wingfield. 10 Clark <§• Finncll, 471; Rolson vs. Atty. Geni. 1 Maddock, 430; Beachcroft vs.-. 4 Per. éf D., 193; Doe vs. Bunyon. 2 Merivale, 419. 2 Pr. Williams, 136; Harris vs. Lincoln. 1 Vesey, 231. 4 Russell, 384. 3 Blackstone, 212; Newbury vs. Meade. 1 Vesey, 313 Beard vs. Travers. 1 Bullen, 295. CITED— 3 Johnson ; Jackson vs. Blanshon. 1 Haiokins, 239, 384, 385. 1 Greenleaf’s Ev., secs. 570, 21, 142. 4 Dana, 423 ; Bennett vs. Runyon. 6 Dana, 110; Cook’s heirs vs. Totter’s heirs. 13 B. M., 371. 3 A. K. Marshall, 326; Birny vs. Hann. 2 Starkie’s Ev., 833, title Pedigree. 1 Starkie’s Ev., 29-30-31. Randall’s Peake, 11. 4 Mon., 367 ; Taylor vs. Whiting. 4/. J. Mar., 651; Bank vs. Johnson. 5 J. J. M.; Currie vs. Fowler. 2 Greenleaf, 354. 2 Star Me, 833. Matthew’s Presumptive Evidence, 284. 8 B. M., 511; Remington vs. Lewis. CITED— 2 Lee, 244; Taylor vs. Taylor. 4 Bradford, 85. Best on Presumptions, 57-8. Hubbeck on Successions, 248-58. 7 B. M., 132; Kuhl vs. Enauer. 4 Bradford, 85; Ferries vs. Public adm’r. 8 B. M., 612 ; Remington vs. Lewis. 8 B. M., 113 ; Donnelly vs. Donnelly. 5 Barbour, 215 ; Clayton vs. Wardel. 2 House of Lords Cases, 331; Piers vs. Piers. 2 House of Lords Cases, 566; Morris vs. Davies. Cla. Sf Fin., 163. 1Lee, 571; Taylor'vs. Taylor. 1 Lee, 271; Lady Mayo vs. Brown. 1 Dessaussure's Equity R., 595 ; Johnson vs. Johnson's ex'r. 9 Smith's N. Y. R., 94 ; Canjoble vs. Feme. 4Bradford, 28. 26 Barbour, 177. 1 Penn. R., 452 ; Senser vs. Bower. 6 Howard, 819 ; Patterson vs. Gaines. 4 Johnson, 52; Fenton vs. Reed. 8 B. M., 113 ; Donnelly vs. Donnelly. 5 J. J. Mar., 460 ; Sneed vs. Ewing and wife. 3 Dana, 232; Storer vs. Boswell's heirs. 3 A. K. Mar., 369; Dumarsly vs. Fishly. 2 Kent, 86-7. Butler's Nisi Prius, 112. 3 A. K. Mar., 372. 28 Law Jour. Rep., 745 ; Goodman vs. Goodman. 4 Bing., 266; Doe vs. Fleming. Law Register, May, 1865, 418. Búrrill on Cir. Ev., 39th ed., 1859. Robertson's Scrap Book, 218. 3 A. K., 326 ; Birney vs. Hann. 13 B. M., 371; Jones vs. Letcher. 1 Gi'eenleaf on Evidence, 116, secs. 103-107. 2 Smith's Leading Cases, 119 (10 East)] Hingman vs. Ridgway. 13 Yesey,jr., 147; Towles vs. Young. 13, East, 574 ; Whitlock vs. Baker. 1 Philips on Evidence, 238. Mathews on Presumptive Evidence, 271. 2 Saunders on Pleading and Evidence, 58. 13 Tesey, 714, 148, 147. 6 Tenn. Rep., 330. Bul. N. P., 112. 10 East, 120. 18 Vesey, 443-446. Gowper’s Rep., 591; Stevens vs. Moss. 1 Gilbert’s Evidence, 279. • 1 Wheaton’s Selwyn’s Nisi Prius, 615. 2 Bingham, 86. 4 Randolph, 611; Gregory vs. Baugh. 2 Conn. Rep., 348; Chapman vs. Chapman. 4 N. H. Rep.; Waldron vs. Tuttle. 7 Curtis, 605 (1 Peters, 337); Elliott vs. Pier sol. Littell’s Select Cases, 24; Nicholas vs. Landsdale. 1 Greenleaf, sec. 570. 1 Starkie and notes, 7 Am. ed.from 3d Bond, ed., 1842. 4 B. $ A., 376. 5 T. R., 229. 2 Atk., 44. Selwyn’s N. P., 535, 517. 1 Price, 232. 2 Price, 308. 6 Mad., 8. 2 M. 4* B., 337; King vs. Netherthong. 1 Esp. C., 275. 1 Blackf., 162; Henthorn vs. Doe. Martin <Sf Terger, 228 ; Hawes vs. Peck’s lessee. 2 Munf., 129 ; Roberts vs. Stanton. 7 Wend., 371; Hewlett vs. Cork. MSS. Opinion, Winter Term, 1861-2; Means vs; Fair-burn et al. CITED— Best on Presumption, 57. Wigram on Wills. 1 Met., 277. 2 Dana, 47.